Bill S-3:An Act to Amend the Indian Act (elimination of sex-based inequities in registration)

On the Matter of Unknown and Unstated Paternity and the Indian Act ...

On May 16, 2017, Lynn Gehl, Mary Eberts of The Law Office of Mary Eberts, and Emilie Lahaie of Aboriginal Legal Service Toronto testified in front of the Standing Senate Committee on Aboriginal Peoples.

In my testimony I was clear in my call for the need to protect Indigenous women and Indigenous girls who become pregnant through sexual violence such as rape (This includes statutory rape.), gang rape, and sexual slavery where as such no evidence would be available in terms of who the biological “father” is.

Emerging from the Court of Appeal judgement regarding Gehl v Attorney General of Canada, the Law Office of Mary Eberts and Aboriginal Legal Services Toronto put forward two important clauses to be inserted into Bill S-3.

1. The Registrar shall accept reasonable evidence of the Indian status of unlisted parent. [as per para 45 and 51 of Gehl v AG, 2017]

2. Under this Act, no presumptions of non-status Indian paternity arises in the case of an unknown or unidentified father. [as per para 49 of the Gehl v AG, 2017]

You can access the entire video testimony here at this link: Click here

On May 18, 2017, during the clause-by-clause amendments, The Honourable Senator Murray Sinclair read the following into Bill S-3, and where the inserted clause is titled Unknown and Unstated Parentage:

Section 5 of the Indian Act is amended by adding the following after subsection (5): (6) If a parent, grandparent or other ancestor of a person in respect of whom an application is made is unknown — or is unstated on a birth certificate that, if the parent, grandparent or other ancestor were named on it, would help to establish the person’s entitlement to be registered — the Registrar shall, without being required to establish the identity of that parent, grandparent, or other ancestor, determine, after considering all of the relevant evidence, whether that parent, grandparent or other ancestor is, was or would have been entitled to be registered. In making the determination, the Registrar shall rely on any credible evidence that is presented by the applicant in support of the application or that the Registrar otherwise has knowledge of and shall draw from it every reasonable inference in favour of the person in respect of whom the application is made.

What is missing from this proposed amendment?

It does not address the second clause submitted by The Law Office of Mary Eberts and Aboriginal Legal Service Toronto which again reads as: Under this Act, no presumptions of non-status Indian paternity arises in the case of an unknown or unidentified father. [as per para 49 of the Gehl v AG, 2017]

In situations of rape no evidence of who the man is/was will be available where as such Indigenous women and Indigenous girls will be faced with a situation of an unknown and thus an unstated paternity. Indigenous mothers and their children should not suffer because they lack evidence that this man may be an Indian. In all situations of sexual violence Indigenous children born to Indigenous mothers and Indigenous girls must be registered with the same Indian status as the mother: That being either section 6(1) or 6(2) status. Said another way, these Indigenous children must not be “bumped down” or “bumped out” of Indian registration through the logic of the requirement for circumstantial evidence.

As Mary Eberts argued in her senate testimony, there is the need for the legislature to act proactively in ensuring they are passing into law legislation that is Charter compliant. There is no need for Indigenous women and Indigenous girls who have been raped to take this matter through Canada’s court system. Here is the exact quote where Mary cites a person who worked on the language of section 15 of the Charter:

“It was envisioned right from the start of the Charter that Parliament in passing laws would comply with the Charter. It would act proactively and its compliance with the Charter was not going to be limited to circumstances where the court said something was contrary to the Charter and the legislature merely fixed-up the problem.”

The Honourable Senator Frances Lankin stated that she is prepared to read into Bill S-3 a friendly amendment during third reading.

Please stand on the side of Indigenous women and Indigenous girls, and their children, who experience sexual violence at a higher rate.

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​Lynn Gehl, Ph.D. is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. She recently won an Ontario Court of Appeal case on sex discrimination in The Indian Act, and is an outspoken critic of the Algonquin land claims process. Her bookThe Truth that Wampum Tells: My Debwewin of the Algonquin Land Claims Process offers an insider-Indigenous analysis of the Algonquin land claims process in Ontario. She has is new book titled Claiming Anishinaabe: Decolonizing the Human Spirit with the University of Regina Press scheduled to be published in the fall of 2017. You can reach her through, and see more of her work, at www.lynngehl.com.